CHESHIRE WEST AND CHESTER COUNCIL

DELEGATED DECISION REPORT

Application Number

Description Proposed Public Path (Part) Extinguishment Order under

section 118 of the Highways Act 1980

Site address Public Footpath No 6 Weaverham

Ward Weaverham and Cuddington Ward

Ward Members Councillors Paul Williams, Gillian Edwards, Charles

Fifield

Case Officer Adele Mayer, PROW asset management Officer (e

mail PublicRightOfWay@cheshirewestandchester.gov.uk

Date **** 202112 March 2021

Recommendation

(1) That an Order be made under Section 118 of Highways Act 1980,

extinguishing part of Public Footpath 6 in Weaverham as shown on Plan No SD068A

by a solid black line on the grounds that it is not needed for public use.

(2) That the Highways Commissioner be authorised to take any action considered

necessary in respect of the confirmation of the Order hereby authorised to be made.

1. Site Description

2. Public Footpath 6 Weaverham commences on Well Lane (UW3236) at OS grid

reference SJ 6125 7449 and runs in a generally southerly then south easterly

direction along Leigh Way (UW2817) to a point at Number 12 Leigh Way OS grid

reference SJ 6131 7431then running in a generally southerly direction to

Longacre (UW2813) and running in a generally south westerly direction to High

Street (B5153) at OS grid reference SJ 6125 7419

3. The part affected by this proposal is the section that runs between Leigh Way OS

grid reference SJ 6131 7431 and Longacre at OS grid reference SJ 6128 7425, a

length of 78 metres and shown on Plan SD068A (” the Plan”) between A and B

by a solid black line. Photographs of the route can be found at Appendix A.

4. The background to this proposal lies with a proposed housing development in the

1970’s and a diversion Order “The Stopping Up of Highways (County of Chester)

(No 7) Order 1960” made by the Ministry of Transport (copy at Appendix B). An

administrative “omnibus” legal event order, made in 2000 by the former Cheshire

County Council, modified the Definitive Map and Statement of Public Rights of

Way (the “DM”) with the addition of the 1960 Order. The legal event order

administers legal events which had already been through a public notification

process, so that there is no statutory requirement to publish notice of the order a

second time. The process was correctly carried out, however other documents

show that the 1960 Order for whatever reason, was not incorporated into the

construction site layout.

5. Images of the 1973 site layout plans for the development have been provided.

The construction plans show an intention to divert the public footpath onto

Longacre “existing footpath to be diverted into proposed development”. This is

contrary to the 1960 Order, which was by this date more than 10 years old, and

the site plan notations suggest that the Order plan was not utilised. The site

layout plan shows that there was no intention to create a footpath between

Longacre and Leigh Way as intended by the 1960 Order. The development was

approved by the Vale Royal Borough Council planning department, without it

seems resolving the difference between the 1960 Order and the site layout.

6. An aerial photograph dated c 1970, shows the unconstructed line for Longacre,

and completion of the houses on Leigh Way. The detail is not clear enough to

state if provision for a footpath had been made available.

7. The former County Council abandoned a 1980 review of the DM as required by

the National Parks and Access to the Countryside Act 1949 because in 1981 new

legislation (The Wildlife and Countryside Act 1981) changed the statutory duty for

a full review of the DM, to a “rolling review” of the DM (and the application of legal

events by an administrative modification order as described above). The 1980

review would have applied all legal order changes to the DM, and for FP6,

the1960 Order was cited with the effect of the changing the route as described:

“Route to Well Lane now via Long Acre and Valley Road”. The review statement

therefore would have effected a diversion of the footpath as built. The review

statement is further contemporary evidence that there was no footpath

constructed between Longacre and Leigh Way as shown on the 1960 Order.

8. The current proposal recognises that when the development was laid out, there

was an intention to divert the footpath, but it did not replicate the diversion of FP6

as shown on the 1960 Order, nor is there evidence of a second diversion Order.

A footpath was not constructed between Longacre and Leigh Way and there has

been no intentional obstruction of an existing footpath, although the line of the

footpath is obstructed by walling, fences and boundaries and furniture.

9. The Council is satisfied, after investigation, that this part of FP6 is an historical

anomaly, and that it is expedient to make an extinguishment Order.

10. The test for the making of the Order is set out at paragraph 20, namely whether

the length of footpath is needed for public use. Use has been made of online

mapping and walking the area, to identify local routes to schools, shops,

community centres and public facilities (Appendix C). There may be journeys of

which we are unaware, however, it provides a good basis for considering whether

the footpath between Leigh Way and Longacre would likely, other than for the

existence of an Order, to be used by the public. The mapping indicates that there

are no facilities to the south of Leigh Way, for example on High Street, that are

not as convenient to reach using the existing footpaths, or facilities on the north

side of Longacre which are not as convenient to reach by existing footways and

paths.

11. Consideration has been given to the tests, set out at paragraphs 22 – 23 for

confirming an Order, what potential use of the path would be made but for the

Order, and if there is any impact on land served by the path.

12. As discussed below, the footpath would not be a more functional route than the

existing highway network. In conclusion it is considered that the footpath is not

likely to be needed because there is satisfactory access available with Longacre

and the unaffected length of FP6 to High Street, and Leigh Way which also

connects with Smith Lane to High Street via another public footpath.

13. The remaining parts of the path connect with highways and no land is reliant on

the affected length of the path for access.

14. Consultation

15. The Weaverham Parish Council have made an objection. The observations

include a comment that the legal record shows the effect of the 1960 Order, and

the state on the ground; a belief that stones forming the wall of 12 Leigh Way are

steps to a footpath; a suggestion that the footpath was connected with the

Weaverham Well; that complaint was made in c2012 by a Councillor that the path

was not available; allegation that the housing developer would have been aware

of the diversion of the footpath; the route where the footpath runs on the map

could be reinstated and that the footpaths should be preserved.

16. The Officer for the Council has responded to the objections and the objection has

not been withdrawn. The results of the investigation are laid out at paragraphs 4

– 8 above, such that an Order had been made in 1960, which was forgotten, or a

variation Order could have been, but was not, made to reflect the diversion

shown on the development site layout. As a consequence, part of the footpath

was not created within the development. The 1960 Order diverted the footpath

and the opportunity to object to the loss of an historic link was at the making of

the 1960 Order. The Council records show that enquiries were made in 2003 and

2006 regarding the depiction of the footpath on the DM. No further action appears

to have been taken, other than enquires were said to have been made by the

public rights of way officer of the district council, Vale Royal Borough Council.

The Cheshire West and Chester Council has taken the view that anomalies on

the DM should be addressed when the resources permit (ROWIP, para 25).

17. Statutory undertakers have been consulted and no objections have been

received. If an Extinguishment Order is made, existing rights of access for the

statutory undertakers to their equipment and apparatus are, in any case,

protected.

18. User groups have been consulted. There were no comments received.

19. Relevant Legislation

20. Section 118 of the Highways Act 1980 empowers an appropriate Authority to make

a Public Path Extinguishment Order if it is satisfied that it is expedient that the path

or way should be stopped up on the ground that it is not needed for public use.

Also, subsection (6) of Section 118 applies, whereby any temporary circumstances

preventing or diminishing the use of the path or way by the public shall be

disregarded.

21. If an extinguishment order is made and is objected to and the objections are not

withdrawn, the order will be submitted to the Secretary of State. Section 118(2)

provides that the Secretary of State shall not confirm the Order unless he “is

satisfied that it is expedient so to do having regard to the extent (if any) to which it

appears to him […] that the path or way would, apart from the order, be likely to be

used by the public, and having regard to the effect which the extinguishment of the

right of way would have as respects land served by the path or way”

22. Officers in preparing this report and recommendation have had regard to a

number of other considerations required by law including:-

22.1. the needs of agriculture and forestry and the desirability of conserving

biodiversity, flora, fauna and geological and physiological features,

22.2. requirements in relation to equality, and the prevention of crime and

disorder, and

22.3. all material provisions of the Council’s Rights of Way Improvement

Plan.

23. Where objections to an Order are made and not withdrawn, the Order will fall to

be confirmed by the Secretary of State. Where there are no outstanding

objections to an Order, it is for the Council to determine whether the Order should

be confirmed.

24. Relevant Policies

25. The following policies and protocols are relevant to this application.

25.1. Rights of Way Improvement Plan 2011-16

25.1.1. Statement of Action AM6 “We will assess, develop and deliver

solutions to Definitive Map anomalies such as culs de sac, boundary

changes and permanent building obstructions, using the prioritisation

system used for DMMOs”

25.1.2. Statement of Action E05 “we will follow the Equality Act 2010 to

comply with standards for mobility and visually impaired users where

appropriate and reasonable”

26. Assessment and Issues

27. The purpose of the extinguishment order is to remove part of Public Footpath 6

from the DM. Investigation concluded that a 1960 Order, without explanation, had

not been fully implemented. Assessment of the likely use by the public if the route

were available, concluded that there are sufficient alternative routes in the

highway network that this path was not needed and on balance it was expedient

to make an Order to extinguish this part of the footpath.

28. In respect of the expediency of confirming the Order taking into account the

matters mentioned in paragraph 21 above, it is considered that land crossed by

the path has alternative forms of highway connection and an Order would have

no impact on the land crossed by the footpath.

29. In respect of the matters mentioned in paragraph 22, regard has been given to

the Councils aim to resolve DM anomalies.

30. Conclusion

31. The proposal to extinguish has been consulted upon. The Parish Council has

objected to the proposal but consideration of the objections, with the test for

expediency has on balance weighed in the favour of an extinguishment of this

part of the footpath.

32. Associated documents

33. Application File SD068A /WeaverhamFP6

34. Plan SD068A

Appendix A

Photographs

High Street

High Street

Entrance

To FP6

Junction of FP6 with south and north of Longacre

Point

B on

planLongacre

Phto needed of longacre 17

Google aerial

image

Leigh Way

Lonagcre

provision

for

footpath

Point A on plan, 12 Leigh Way

Typical

estate

road,

Leigh

Road

Appendix B

1960 Order

Appendix C